[Volokh] Eugene Volokh: Second Amendment Doesn't Protect Illegal Aliens:

[notify at powerblogs.com]

Posted by Eugene Volokh:
Second Amendment Doesn't Protect Illegal Aliens:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218685192


   So concludes [1]a Magistrate Judge in the Southern District of
   Florida, in U.S. v. Boffil-Rivera, recommending that the District
   Judge reject a constitutional challenge to a federal statute that
   criminalizes gun possession by illegal aliens. Seems like a pretty
   sensible result, but what's interesting is the reasoning:

     That common law right [to keep and bear arms, secured by the Second
     Amendment,] was held only by citizens and those who swore
     allegiance to the Government; it did not include everyone present
     on American soil.... For instance, Samuel Adams and other delegates
     urged the Massachusetts ratifying convention to recommend barring
     Congress from âprevent[ing] the people of the United States, who
     are peaceable citizens, from keeping their own arms.â The New
     Hampshire convention proposed that âCongress shall never disarm any
     Citizen unless such as are or have been in Actual Rebellion.â In
     these proposals, the pre-existing right clearly inured only to
     âpeaceableâ or lawful âCitizens.â See also David Yassky, The Second
     Amendment: Structure, History, and Constitutional Change, 99 Mich.
     L. Rev. 588, 626â27 (2000) (âThe average citizen whom the Founders
     wish to see armed was a man of republican virtue -â a man shaped by
     his myriad ties to his community, the most important for this
     purpose being the militia.â).

     Founding-era statutes confirm this limitation on the pre-existing
     common law right. During the American Revolution, several states
     passed laws providing for the confiscation of weapons owned by
     persons refusing to swear an oath of allegiance to the state or the
     United States. To deal with the potential threat coming from armed
     citizens who remained loyal to Great Britain, states took the
     obvious precaution of disarming these persons. Thus, even within
     the confines of the pre-existing right to keep and bear arms,
     certain persons -â such as those who did not swear loyalty to this
     country -â were seen as falling outside the protection of that
     right, and laws or regulations that disarmed them were
     well-established at the time the Second Amendment was adopted.
     Indeed, several Founding-era state constitutions expressly provided
     that the right to bear arms extended only to âcitizens.â See, e.g.,
     Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817);
     Conn. Const. (1818); Me. Const. (1819).

     Along these same lines, Heller concluded that the reference to âthe
     peopleâ in the Second Amendment âunambiguously refers to all
     members of the political community, not an unspecified subset.â
     Heller grouped this reference to âthe peopleâ with others found in
     the Bill of Rights, specifically the First, Fourth, and Ninth
     Amendments, as defined by an earlier Supreme Court decision, United
     States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision,
     which related to the scope of the Fourth Amendmentâs application to
     the DEAâs search of a foreign national that took place on foreign
     soil, Justice Rehnquistâs majority opinion adopted the following
     definition of âthe peopleâ:

     â[T]he peopleâ seems to have been a term of art employed in select
     parts of the Constitution .... [Its uses] sugges[t] that âthe
     peopleâ protected by the Fourth Amendment, and by the First and
     Second Amendments, and to whom rights and powers are reserved in
     the Ninth and Tenth Amendments, refers to a class of persons who
     are part of a national community or who have otherwise developed
     sufficient connection with this country to be considered part of
     that community.

     Verdugo-Urquidez is but one example of a series of cases that
     recognize that foreign nationals or âaliensâ are not entitled to
     all the rights and privileges of American citizens. Justice
     Jacksonâs âascending scale of rightsâ analysis is fully applicable
     today:

     The alien, to whom the United States has been traditionally
     hospitable, has been accorded a generous and ascending scale of
     rights as he increases his identity with our society. Mere lawful
     presence in the country creates an implied assurance of safe
     conduct and gives him certain rights; they become more extensive
     and secure when he makes preliminary declaration of intention to
     become a citizen, and they expand to those of full citizenship upon
     naturalization.

     Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis
     added). As a result, lawful resident aliens who are present within
     the constitutionâs jurisdiction and have âdeveloped substantial
     connections with this countryâ are entitled to minimal
     constitutional protections. The recognition of certain rights to
     resident aliens, however, does not mean that âall aliens are
     entitled to enjoy all the advantages of citizenship or, indeed, to
     the conclusion that all aliens must be placed in a single
     homogenous legal classification. For a host of constitutional and
     statutory provisions rest on the premise that a legitimate
     distinction between citizens and aliens may justify attributes and
     benefits for one class not accorded to the other; ....â

     Neither foreign nationals who have not yet reached our shores, nor
     illegal aliens who have done so unlawfully and without the Attorney
     Generalâs permission, are entitled to the full panoply of rights
     available to citizens or even resident aliens. To the contrary,
     that status by definition places such individuals outside the
     traditional protections of the Constitution ....

     Clearly, under any historical interpretation of the enactment of
     the Second Amendment or the interpretation of any similar right
     under the Constitution, the individual right to bear arms defined
     by Heller does not apply to an illegal and unlawful alien. This
     Defendant, alleged by this Indictment to have been an unlawful
     alien, is not a citizen, is not ostensibly a person with
     identifiable and significant ties to the community, and is not
     someone who has any duty of allegiance to the United States. A
     person of his status could have been barred from possessing a
     firearm under English or Colonial American common law, and
     similarly could be precluded from doing so under the Second
     Amendment. His mere presence here does not entitle him to
     constitutional protection because he is clearly outside the scope
     of the âpolitical communityâ who are conferred rights under the
     Second Amendment....

   I'm inclined to be skeptical of arguments based on
   Revolutionary-War-era statutes -- what a nation did in time of a war
   in which its existence is in very serious doubt doesn't tell us that
   much about what the general constitutional rules ought to be. But the
   view that "the people" wasn't understood as including illegal aliens
   seems to me quite plausible.

   More on the implications of this decision (and of the underlying
   question) in posts to come.

References

   1. http://volokh.com/files/boffilrivera.pdf